Appeals court revives California ban on foie gras

Sept 15 (Reuters) - A federal appeals court has revived a California state law banning the sale of foie gras made from force-fed birds.

The 9th U.S. Circuit Court of Appeals overturned a January 2015 lower court ruling striking down the law, saying the judge erred in concluding that the ban conflicted with a federal law governing the production of poultry products.

Friday's 3-0 decision by the Pasadena-based appeals court is a victory for animal rights advocates opposed to force-feeding.

The decision is also a defeat for chefs who say they enjoy preparing foie gras, while luxury-minded diners enjoy eating it.

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California's legal battle over foie gras
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California's legal battle over foie gras
Attorney Michael Tenenbaum (C) and guests dine on samples of Hot's Kitchen foie gras at Hot's Kitchen in Hermosa Beach, California January 10, 2015. As chefs in California hurried to stock their kitchens with newly legal foie gras, animal rights activists on Thursday protested a federal judge's decision overturning the state's two-year ban on sales of the fatty liver of ducks and geese. The ruling only applied to the sale of foie gras. Production continues to be banned. To match story CALIFORNIA-FOOD/FOIEGRAS REUTERS/Patrick T. Fallon (UNITED STATES - Tags: FOOD SOCIETY BUSINESS)
Foie gras is being prepared by Hot's Kitchen Sous Chef Aaron DuBois before a foie gras victory party at Hot's Kitchen in Hermosa Beach, California January 10, 2015. As chefs in California hurried to stock their kitchens with newly legal foie gras, animal rights activists on Thursday protested a federal judge's decision overturning the state's two-year ban on sales of the fatty liver of ducks and geese. The ruling only applied to the sale of foie gras. Production continues to be banned. To match story CALIFORNIA-FOOD/FOIEGRAS REUTERS/Patrick T. Fallon (UNITED STATES - Tags: FOOD SOCIETY BUSINESS)
A guest eats the Hot's Kitchen "Leggo My Foie", made with foie gras, waffle, vanilla maple syrup, bacon and whipped cream, at Hot's Kitchen in Hermosa Beach, California January 10, 2015. As chefs in California hurried to stock their kitchens with newly legal foie gras, animal rights activists on Thursday protested a federal judge's decision overturning the state's two-year ban on sales of the fatty liver of ducks and geese. The ruling only applied to the sale of foie gras. Production continues to be banned. To match story CALIFORNIA-FOOD/FOIEGRAS REUTERS/Patrick T. Fallon (UNITED STATES - Tags: FOOD SOCIETY BUSINESS)
The Hot's Kitchen Foie Burger, made with foie gras, brie, huckleberry and whole grain mustard, is presented for a photograph during a foie gras victory party at Hot's Kitchen in Hermosa Beach, California January 10, 2015. As chefs in California hurried to stock their kitchens with newly legal foie gras, animal rights activists on Thursday protested a federal judge's decision overturning the state's two-year ban on sales of the fatty liver of ducks and geese. The ruling only applied to the sale of foie gras. Production continues to be banned. To match story CALIFORNIA-FOOD/FOIEGRAS REUTERS/Patrick T. Fallon (UNITED STATES - Tags: FOOD SOCIETY BUSINESS)
Chef Sean Chaney stands for a portrait with the Hot's Kitchen "Foie Burger" (L), made with foie gras, brie, huckleberry, and whole grain mustard, and "Leggo My Foie", made with foie gras, waffle, vanilla maple syrup, bacon and whipped cream, at Hot's Kitchen in Hermosa Beach, California January 10, 2015. As chefs in California hurried to stock their kitchens with newly legal foie gras, animal rights activists on Thursday protested a federal judge's decision overturning the state's two-year ban on sales of the fatty liver of ducks and geese. The ruling only applied to the sale of foie gras. Production continues to be banned. To match story CALIFORNIA-FOOD/FOIEGRAS REUTERS/Patrick T. Fallon (UNITED STATES - Tags: FOOD SOCIETY BUSINESS)
The Hot's Kitchen "Leggo My Foie", made with foie gras, waffle, vanilla maple syrup, bacon, and whipped cream, is presented for a photograph before a foie gras victory party at Hot's Kitchen in Hermosa Beach, California January 10, 2015. As chefs in California hurried to stock their kitchens with newly legal foie gras, animal rights activists on Thursday protested a federal judge's decision overturning the state's two-year ban on sales of the fatty liver of ducks and geese. The ruling only applied to the sale of foie gras. Production continues to be banned. To match story CALIFORNIA-FOOD/FOIEGRAS REUTERS/Patrick T. Fallon (UNITED STATES - Tags: FOOD SOCIETY BUSINESS)
Hot's Kitchen Sous Chef Aaron DuBois prepares "Leggo My Foie", made with foie gras, waffle, vanilla maple syrup, bacon, and whipped cream, before a foie gras victory party at Hot's Kitchen in Hermosa Beach, California January 10, 2015. As chefs in California hurried to stock their kitchens with newly legal foie gras, animal rights activists on Thursday protested a federal judge's decision overturning the state's two-year ban on sales of the fatty liver of ducks and geese. The ruling only applied to the sale of foie gras. Production continues to be banned. To match story CALIFORNIA-FOOD/FOIEGRAS REUTERS/Patrick T. Fallon (UNITED STATES - Tags: FOOD SOCIETY BUSINESS)
Hot's Kitchen Sous Chef Aaron DuBois prepares foie gras before a foie gras victory party at Hot's Kitchen in Hermosa Beach, California January 10, 2015. As chefs in California hurried to stock their kitchens with newly legal foie gras, animal rights activists on Thursday protested a federal judge's decision overturning the state's two-year ban on sales of the fatty liver of ducks and geese. The ruling only applied to the sale of foie gras. Production continues to be banned. To match story CALIFORNIA-FOOD/FOIEGRAS REUTERS/Patrick T. Fallon (UNITED STATES - Tags: FOOD SOCIETY BUSINESS)
Hot's Kitchen Sous Chef Aaron DuBois prepares foie gras before a foie gras victory party at Hot's Kitchen in Hermosa Beach, California January 10, 2015. As chefs in California hurried to stock their kitchens with newly legal foie gras, animal rights activists on Thursday protested a federal judge's decision overturning the state's two-year ban on sales of the fatty liver of ducks and geese. The ruling only applied to the sale of foie gras. Production continues to be banned. To match story CALIFORNIA-FOOD/FOIEGRAS REUTERS/Patrick T. Fallon (UNITED STATES - Tags: FOOD SOCIETY BUSINESS)
Animal rights activists protest the Presidio Social Club restaurant's decision to serve foie gras in San Francisco, July 14, 2012. Foie gras lovers descended on the restaurant to have their first taste of the delicacy since California imposed a ban on July 1, 2012. Photo taken July 14, 2012. REUTERS/Laird Harrison (UNITED STATES - Tags: SOCIETY POLITICS)
Diana Maria holds a placard as the doorman looks on as activists gathered outside a restaurant serving foie gras in Beverly Hills, California, on January 12, 2015, opposing the recent court ruling lifting the ban on foie gras in California. AFP PHOTO/Frederic J. BROWN (Photo credit should read FREDERIC J. BROWN/AFP/Getty Images)
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"It's like a parent taking away a toy," said Phillip Frankland Lee, the owner of Scratch Bar & Kitchen in Encino, California and a former contestant on the "Top Chef" reality TV show. "It will be something that's missed by the guests."

Prized by gourmands for its rich flavors, foie gras is the liver of specially fattened ducks or geese, and often used to make pate.

California's law prohibits the sale of birds that are force-fed to enlarge their livers, It was passed in 2004 and originally took effect in 2012.

The law had been challenged by a group of Canadian duck and geese producers, the Association des Eleveurs de Canards et d'Oies du Quebec; Hudson Valley Foie Gras in Ferndale, New York; and Hot's Restaurant Group in Los Angeles.

"They made a mistake," said Marcus Henley, Hudson Valley's manager.

"This law has always been unconstitutional and incorrect in its basis. We won't be stopping."

The office of California Attorney General Xavier Becerra, which defended the law, had no immediate comment.

In January 2015, U.S. District Judge Stephen Wilson in Los Angeles agreed with the law's opponents that the federal Poultry Products Inspection Act preempted it.

But in Friday's decision, Circuit Judge Jacqueline Nguyen said California was simply trying to ban a feeding method it deemed cruel and inhumane.

She said this posed no conflict with the federal law, even if it effectively banned foie gras in the state.

"Nothing in the federal law or its implementing regulations limits a state's ability to regulate the types of poultry that may be sold for human consumption," Nguyen wrote.

Jared Goodman, a lawyer for People for the Ethical Treatment of Animals, said the decision "prohibits selling diseased livers of birds force-fed by jamming tubes down their throat and pumping concentrated food down their esophagus. This is truly torture and unimaginable cruelty."

(Reporting by Jonathan Stempel and Richard Leong in New York, and Lisa Baertlein in Los Angeles; Editing by Lisa Von Ahn and Diane Craft)

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